Cruel and Unusual

The American Death Penalty and the Founders' Eighth Amendment

John D. Bessler

Publication Year: 2012

The conventional wisdom is that the founders were avid death penalty supporters. In this fascinating and insightful examination of America's Eighth Amendment, law professor John D. Bessler explodes this myth and shows the founders' conflicting and ambivalent views on capital punishment. Cruel and Unusual takes the reader back in time to show how the indiscriminate use of executions gave way to a more enlightened approach--one that has been evolving ever since. While shedding important new light on the U.S. Constitution's "cruel and unusual punishments" clause, Bessler explores the influence of Cesare Beccaria's essay, On Crimes and Punishments, on the Founders' views, and the transformative properties of the Fourteenth Amendment, which made the Bill of Rights applicable to the states. After critiquing the U.S. Supreme Court's existing case law, this essential volume argues that America's death penalty--a vestige of a bygone era in which ear cropping and other gruesome corporal punishments were thought acceptable--should be declared unconstitutional.

Title Page, Copyright, Dedication

contents

acknowledgments

Introduction

"In 1971, the U.S. Supreme Court agreed to hear the appeals of three black, indigent defendants—William Furman, Lucious Jackson, and Elmer Branch, all sentenced to death by Southern juries. The National Association for the Advancement of Colored People (naacp) had launched a moratorium campaign against the death penalty in the 1960s, and the grant of..."

Chapter One In Cold Blood

"On September 9, 1993, seventeen-year-old Christopher Simmons met his teenage friends, Charlie Benjamin and John Tessmer, at 2:00 a.m. at the mobile home of Brian Moomey, a convicted felon who allowed neighborhood teens to ‘'hang out'’ at his trailer. Earlier that month, Simmons and his two friends—one fifteen and one sixteen—had discussed the possibility of committing a burglary and murdering someone. Simmons felt the best..."

Chapter Two On Crimes and Punishments

"In 1764, a short Italian treatise, Dei delitti e delle pene, was anonymously published in the Tuscan port of Leghorn and delivered for sale in Milan in mid-July. That treatise—destined to spark controversy and a worldwide movement to abolish capital punishment—was written by Cesare Beccaria, the..."

Chapter Three The Abolitionists

"In the same year that the Constitutional Convention met in Philadelphia to forge the U.S. Constitution, Dr. Benjamin Rush, a prominent Pennsylvania physician, penned an important essay on penal reform. Educated at the College of New Jersey (now Princeton University), Rush graduated in 1760 with a Bachelor of Arts degree at the age of fifteen and then studied
medicine in Philadelphia. Having gone on to earn a medical degree at the..."

Chapter Four America’s Founding Fathers

"The United States of America was forged through revolution. The
Stamp Act of 1765, requiring the purchase of revenue stamps for acts of official business, was widely seen by colonists, including the fiery orator Patrick Henry, as unconstitutional. Colonists, who saw themselves as Englishmen, viewed Parliament’s acts as an affront to their right not to be taxed by people other than their elected representatives. In protest, mobs in..."

Chapter Five The Eighth Amendment

"The U.S. Constitution was approved in Philadelphia in September
1787, but ratification was still necessary and both Patrick Henry and
George Mason felt strongly that a bill of rights was needed. ‘If you intend to reserve your unalienable rights,’ Henry said, invoking Virginia’s cruel and unusual punishments clause, ‘you must have the most express stipulation.’ Mason, an Anti-Federalist and George Washington’s friend and neighboring plantation owner, feared Congress would use the Constitution’s Necessary..."

Chapter Six Capital Punishment in America

"Though the Eighth Amendment unequivocally bars ‘cruel and unusual punishments,’ Americans are split over the propriety of capital punishment. Sixteen states and the District of Columbia have abolished capital punishment, but thirty-four states, plus the federal government and the U.S. military, still authorize death sentences. The majority of states— at least on the books—continue to make first-degree murder a capital crime,
and Congress has made approximately sixty offenses death-eligible. Everything..."

Chapter Seven The Road to Abolition

"Murders and retaliatory killings to avenge murders have taken place
throughout human history. ‘Its precise origins,’ Justice Thurgood
Marshall wrote of the death penalty, ‘are difficult to perceive, but
there is some evidence that its roots lie in violent retaliation by members of a tribe or group, or by the tribe or group itself, against persons committing hostile acts toward group members.’ Capital punishment, one commentator posits, originated as a way to ‘placate the gods,’ and evolved later as a way..."

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